Syed Karim Shah v. JOHN ASHCROFT, Attorney General of the United States

*Hon. R. Barclay Surrick, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3440
___________
SYED KARIM SHAH,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent
On Petition for Review of an Order of the Board of Immigration Appeals
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
Tuesday, July 22, 2003
Before: ALITO, FUENTES, Circuit Judges,
and SURRICK,* District Judge.
(Opinion Filed: August 18, 2003)
________________________
OPINION OF THE COURT
________________________

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FUENTES, Circuit Judge:
Syed Karim Shah (“Shah”), a native and citizen of Afghanistan, petitions for review
of a decision of the Board of Immigration Appeals (“BIA” or “Board”) ordering him
removed to Afghanistan. An Immigration Judge (“IJ”) denied Shah’s application for asylum,
withholding of removal, and protection under the United Nations Convention Against
Torture (“CAT”) because changed country conditions precluded a finding of persecution and
because Shah would not be likely to be tortured or killed if he were returned to his home
country. The BIA affirmed the IJ’s determination and dismissed the appeal. In light of the
deference we owe to the BIA’s factual findings, and for the reasons that follow, we cannot
say that the record evidence compels a conclusion contrary to the BIA’s. Thus, we will
dismiss Shah’s petition.
I. Background
Shah attempted to enter the United States unlawfully on February 21, 2001, at John
F. Kennedy International Airport in New York without any documentation. Soon thereafter,
Shah conceded his removability, but requested relief in the form of asylum, withholding of
removal, and protection under the CAT.
At a hearing before an IJ, Shah testified, with the assistance of a Pashtu interpreter,
that he owned a small store in Anguryan, Afghanistan. He said that one day in October of
2000, he found his uncle, brother, and two Taliban dead in his store after he returned from

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1In October 2000, the Taliban were the governing group in Afghanistan.
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a shopping trip.1 He testified that the other Taliban who were present accused him of the
killings and storing weapons in the store. He also indicated that the Taliban accused him of
being against them, a charge which he denied. He said that the Taliban beat him severely
until he became unconscious. When he regained consciousness, he was in a dark room.
Then, for the next two and a half months, he was beaten and questioned regularly.
Shah testified that he was eventually brought before a Taliban judge and that he told
the judge that the weapons in his store had belonged to his deceased uncle. Despite Shah’s
explanation, the Taliban judge ordered Shah to be executed. The judge, however, granted
his last wish of a visit with his mother. Shah described a guard detail of six Taliban taking
him to his mother’s house and then allowing him to visit with his mother alone and
unrestrained. Shah said that he escaped by going from his mother’s house through
connecting doors to six or seven other houses in the village. He then walked to another
relative’s house outside of his village and that relative drove him to Pakistan. Shah said that
he stayed in Pakistan for over a month and then paid an agent about $14,000 or $15,000 to
bring him to the United States.
The documentary evidence submitted by Shah and the Immigration and Naturalization
Service (“INS”) included Department of State Country Reports for 1999 and 2000, Amnesty
International Reports, various news articles, Shah’s birth certificate, and two personal
affidavits from relatives attesting to his identity.

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1The Uzbeks and Tajiks were treated very badly by the Taliban while the Taliban
were in power. The Taliban are Pashtuns. Following the removal of the Taliban, the
Uzbeks and Tajiks have reportedly retaliated against Pashtuns, even those who were not
Taliban. Shah is Pashtun.
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After hearing Shah’s testimony, the IJ made an adverse credibility determination and
denied his application on all grounds of requested relief. On January 23, 2002, the BIA
reversed the Immigration Judge’s adverse credibility finding and remanded the case for
further consideration of Shah’s case in light of changed country conditions following the
removal of the Taliban from power and the establishment of an interim government in
Afghanistan.
On remand, the IJ heard testimony and received documentary evidence about changed
country conditions in Afghanistan. Shah conceded that the Taliban were no longer in power
as of the date of the hearing. He insisted, however, that the Taliban still had a presence in
Afghanistan and that the interim government was only in control of the capital, Kabul, while
the rest of the country was very unstable. He also testified he could not live safely anywhere
in Afghanistan because the Uzbeks and Tajiks would want to harm him because of his
ethnicity.1 Shah said that he feared that he would be killed by the Taliban, Uzbeks, or Tajiks
if he were returned to Afghanistan. Shah and the INS submitted newspaper articles, reports
concerning recent country conditions, the Department of State country report for 2001, and
the Human Rights Watch country report for 2002.
The IJ determined that changed country conditions precluded a finding of persecution

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and again denied Shah’s application for asylum and withholding of removal. The IJ also
concluded that the record did not support a finding that Shah would be tortured in
Afghanistan, and thus denied protection under the CAT. On August 6, 2002, the BIA
affirmed the IJ’s decision and entered a final order of removal. This appeal followed.
III. Analysis
The BIA dismissed Shah’s appeal from the denial of his application for asylum and
withholding of removal because it agreed with the IJ’s “determination that changed country
conditions in Afghanistan render unreasonable [Shah’s] professed fear of persecution by the
Taliban.” (A.R. at 2). In reaching that conclusion, the BIA noted that the INS had met its
burden of demonstrating changed country conditions while Shah had not met his burden of
rebutting the INS’s evidence. Id. The BIA also agreed with the IJ’s conclusion that “it is not
more likely than not that the government of Afghanistan will torture [Shah] or acquiesce in
his torture by others,” thus precluding protection under the CAT. Id. This Court has
jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai
v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001).
A. Asylum and W ithholding of Removal
The Attorney General may exercise his discretion to grant asylum to an applicant “if
the Attorney General determines that such alien is a refugee . . . .” See 8 U.S.C. § 1158(b).
A refugee is “any person who is outside any country of such person's nationality . . . and who
is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of

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the protection of that country because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or political
opinion[.]” 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of
establishing that he or she qualifies as a “refugee.” See 8 C.F.R. § 208.13(a) (2001).
In order to establish eligibility for asylum based on past persecution, the applicant
must show: (1) one or more incidents rising to the level of persecution; (2) that are “on
account of” one of the statutorily-protected grounds; and (3) are committed either by the
government or by forces that the government is either unable or unwilling to control. See
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). A showing of past persecution gives rise
to a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. §
208.13(b)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). “Where past
persecution is not established, ‘[a]n applicant can demonstrate that she has a well-founded
fear of future persecution by showing that she has a genuine fear, and that a reasonable
person in her circumstances would fear persecution if returned to her native country.’"
Abdulrahman, 330 F.3d at 592 (quoting Gao, 299 F.3d at 272).
In order to qualify for withholding of removal, on the other hand, an applicant must
show a “clear probability” that his or her life or freedom would be threatened if s/he is
deported. See Lin v. INS, 238 F.3d 239, 243 (3d Cir. 2001) (citing Chang v. INS, 119 F.3d
1055, 1066 (3d Cir. 1997)). “Clear probability” is considered a higher standard than “well-
founded fear.” See INS v. Stevic, 467 U.S. 407, 429-30 (1984); see also Chang, 119 F.3d

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at 1066. Accordingly, an applicant who fails to prove “well-founded fear” in seeking asylum
will similarly be unable to prove “clear probability” with respect to withholding of
deportation. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). Therefore, so
long as the BIA correctly denied Shah’s application for asylum, it necessarily follows that
the BIA’s denial of his application for withholding of removal was proper as well.
Whether an asylum applicant has demonstrated past persecution or a well-founded
fear of future persecution is a factual question, which we review under the substantial
evidence standard. See Gao, 299 F.3d at 272.
Shah argues that the BIA’s failure to consider his claim of past persecution denied
him a presumption of well-founded fear of future persecution. We do not agree with Shah’s
assumption that the BIA failed to consider his claim of past persecution. Although the BIA
decision under review does not specifically discuss past persecution, the procedural history
of this case makes clear that the BIA had earlier considered Shah’s claim. After the BIA
reversed the IJ’s adverse credibility determination, it remanded Shah’s application for
consideration of changed country conditions. The remand would only have been necessary
if the BIA had determined that Shah had presented sufficient evidence of past persecution
to warrant the further consideration. See 8 C.F.R. § 208.13(b)(1)(i)(A) (stating presumption
of well-founded fear of future persecution can be rebutted by evidence that “there has been
a fundamental change in circumstances such that the applicant no longer has a well-founded
fear of persecution in the applicant’s country of nationality . . . .”). If the BIA had concluded

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2Shah asserts that the BIA’s failure to address his claim of past persecution was
harmful for an additional reason. If an applicant can establish past persecution, but not a
well-founded fear of future persecution, he may be granted asylum if there are compelling
reasons not to return him to his native country. See Matter of Chen, 20 I&N Dec. 16
(BIA 1989). If, for example, Shah had suffered particularly “atrocious forms of
persecution,” he might be granted asylum on the basis of past persecution alone. See e.g.
Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir. 1995). The IJ found that there was no
compelling reason not to return Shah to Afghanistan arising from the severity of his past
persecution. (A.R. at 65). We find Shah’s argument to the contrary unpersuasive.
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that Shah had not met his burden with respect to past persecution, it would simply have
dismissed the appeal at that point in the proceedings.2
Next, Shah argues that, in concluding that the INS met its burden of demonstrating
changed country conditions, the BIA ignored his stated fears about the former Taliban who
remain in Afghanistan. Shah is incorrect. The BIA noted that “the Taliban government is
no longer in power in Afghanistan, and its leaders are no longer in a position to visit
mistreatment upon [Shah] throughout the whole country, to the extent that remnants of the
Taliban remain in Afghanistan.” (A.R. at 2). Accordingly, it is clear that the BIA did
consider Shah’s fear that the remaining Taliban would harm him upon his return, but found
that this fear was not reasonable.
Similarly, Shah argues that the BIA ignored his fears about the Tajiks and Uzbeks
who might want to harm him simply because he is Pashtun. Although the BIA did not
specifically mention Shah’s fears about the Tajiks and Uzbeks, it affirmed the IJ’s
“determination that changed country conditions in Afghanistan render unreasonable [Shah’s]
professed fear of persecution by the Taliban . . . .” Id. In reaching her determination in that

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regard, the IJ considered Shah’s stated concern about other ethnic groups in Afghanistan.
The IJ mentioned, in her oral decision, Shah’s belief that “Pashtu people will be revenged
upon by other ethnic groups since the Taliban extremists were Pashtu,” and that “he will be
singled out as a Pashtu because he does not speak Farsi and he has a Pashtu accent.” Id. at
53. The IJ also noted Shah’s denial that “he can live elsewhere in other regions because the
Pashtu are disliked everywhere.” Id. The IJ observed, however, that Shah admitted on cross-
examination that “he himself has never been harmed by any Tajiks or any Uzbeks in
Afghanistan,” and that because President Karzai (a Pashtun) controls the Kabul region, he
would be safe there (as a Pashtun). Id. at 53-54. Finally, the IJ observed that Shah himself
“could not even suggest that . . . there is nowhere in Afghanistan that he can live safely.” Id.
at 63. Inasmuch as the BIA adopted the IJ’s findings about changed country conditions and
the IJ clearly considered Shah’s stated fears concerning the Tajiks and Uzbeks, the BIA did
not ignore these fears.
Shah also argues that the BIA applied an incorrect legal standard in evaluating
changed country conditions. In order to rebut a presumption of well-founded fear of
persecution, the INS must establish that conditions in the country have changed such that the
applicant no longer has a well-founded fear of being persecuted if he were returned to the
country. See 8 C.F.R. § 208.13(b)(1)(I) (emphasis added). Shah contends that the BIA’s
decision suggests that the only burden on the INS is to show that country conditions have
changed. As proof, Shah points to the portion of the BIA’s decision which states, “we

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conclude . . . that the Immigration and Naturalization Service met its burden of demonstrating
changed country conditions . . . .” (A.R. at 2). Shah’s proof is contradicted by another
portion of the BIA’s decision. In its opinion, the BIA stated that it affirmed the IJ’s
“determination that changed country conditions in Afghanistan render unreasonable [Shah’s]
professed fear of persecution by the Taliban . . . .” Id. That statement is consistent with the
standard set forth by 8 C.F.R. § 208.13(b)(1)(i). Accordingly, Shah’s argument that the BIA
applied an incorrect legal standard is meritless.
Finally, Shah maintains that the BIA’s factual finding regarding changed country
conditions is not supported by substantial evidence. “We will uphold the findings of the BIA
to the extent that they are supported by reasonable, substantial and probative evidence on the
record considered as a whole, and will reverse those findings only if there is evidence so
compelling that no reasonable factfinder could conclude as the BIA did.” Kayembe v.
Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).
Shah argues that there is evidence in the record showing that former Taliban are still
present and active in Afghanistan, that Hamid Karzai is only in control of Kabul, and that the
rest of the country is controlled by warlords, former Mujahedin, and former Taliban. The
INS, however, presented evidence showing that Afghanistan is no longer under Taliban rule,
but rather is being operated by an interim government led by Hamid Karzai, and that
reconstruction efforts are under way. Shah’s evidence, when compared with the INS’s
evidence, simply is not so compelling that no reasonable factfinder could conclude, as the

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BIA did, that Shah no longer has a well-founded fear of being persecuted if returned to
Afghanistan. See id.
Significantly, Shah did not present evidence demonstrating that there is no place in
Afghanistan where he could live safely. See Etugh v. INS, 921 F.2d 36, 39 (3d Cir. 1990).
Even assuming Shah is correct that he would be persecuted by Tajiks and Uzbeks because
is Pashtun, the record evidence shows that the interim government, which is led by several
Pashtuns, is in control of Kabul. There is nothing in the record to indicate that Shah would
be any less safe in Kabul than any other Pashtun.
We do not mean to suggest that Shah has nothing to fear upon return to Afghanistan.
Shah cites several reports and articles that describe the “deplorable conditions” in
Afghanistan, including “a severe lack of food, water, security, education, job opportunities,
and healthcare.” (Shah’s brief at 33-34). He points to the poor human rights situation and
ongoing fighting in the country. Id. We certainly understand that many serious problems
confront Afghanistan in the wake of the removal of the Taliban from power and following
decades of conflict. However, generally poor conditions and random private acts of violence
do not constitute persecution. See Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001)
(“[O]rdinary criminal activity does not rise to the level of persecution necessary to establish
eligibility for asylum.”); Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (“Mere generalized
lawlessness and violence between diverse populations, . . . generally is not sufficient to
permit the Attorney General to grant asylum . . .”).

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Because we find that the BIA correctly concluded that Shah is not entitled to asylum
on the basis of a well-founded fear of persecution, we will dismiss Shah’s petition to review
the BIA’s denial of asylum. And because Shah has not satisfied the lesser burden of proof
required for asylum, he has also necessarily failed to satisfy the greater burden required for
withholding of removal. See Zubeda, 333 F.3d at 469-70. Accordingly, we will dismiss
Shah’s petition to review the BIA’s denial of withholding of removal.
B. Convention Against Torture
In order to obtain relief under the CAT, an applicant must establish “that it is more
likely than not that he or she would be tortured if removed to the proposed country of
removal.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (quoting 8 C.F.R. §
208.16(c)(2)). This standard does not include a subjective component, but rather requires
that the applicant show entitlement to relief by objective evidence. See id. Once an
applicant establishes a claim for relief under the Convention Against Torture, s/he may not
be removed to the country where the torture occurred. Zubeda, 333 F.3d at 471.
Shah argues that the BIA violated due process because it did not perform an
individualized assessment of his CAT claim. Shah argues that the BIA’s failure is
demonstrated by the fact that it purported to affirm a finding that the IJ did not actually make.
Specifically, the BIA stated that it affirmed the IJ’s determination that “it is not more likely
than not that the government of Afghanistan will torture [Shah] or acquiesce in his torture
by others.” (A.R. at 2) (emphasis added). But the IJ determined only that the evidence “does

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not support a finding that . . .[Shah] would be tortured if he is forced to return to
Afghanistan.” Id. at 66 (emphasis added). Shah contends that the IJ applied the wrong
standard (whether Shah would be tortured), but that the BIA covered up her error by quoting
the correct standard (that Shah was not more likely than not to be tortured) while ignoring
the fact that the IJ applied the wrong one.
In Abdulai, we recognized that a permanent resident alien facing removal was entitled
to basic due process protection. 239 F.3d at 549. In that context, we stated, “due process
requires three things. An alien: (1) is entitled to ‘factfinding based on a record produced
before the decisionmaker and disclosed to’ him or her; (2) must be allowed to make
arguments on his or her own behalf; and (3) has the right to an ‘individualized determination
of his [or her] interests.’” Id. (citations omitted). With respect to the third requirement, the
“decisionmaker must ‘actually consider the evidence and argument that a party presents.’”
Id. (citation omitted). “But because ‘[a]gency action . . . is entitled to a presumption of
regularity,’ [the petitioner] bears the burden of proving that ‘the BIA did not review the
record when it considered the appeal.’” Id. (citations omitted).
Assuming Abdulai applies here, Shah has not met his burden of proof. In this case,
the factual findings were clearly based on the record and Shah was allowed to make
arguments on his own behalf. We also note that, after considering the evidence and
arguments presented, the BIA did make an individualized determination of Shah’s interests.
Significantly, Shah did not argue in his brief to the BIA that the IJ had applied an erroneous

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standard of law with respect to his CAT claim. Thus, there is no reason to think that the BIA
did not conduct its own analysis of the record.
Shah argues in the alternative that the BIA’s conclusion is not supported by substantial
evidence. Shah does not cite to any evidence in the record tending to show that no
reasonable factfinder would have reached the same conclusion as the BIA. Nor could he.
There is no objective evidence in the record showing that Shah would more likely than not
be tortured by Hamid Karzai’s interim government upon his return to Afghanistan.
Because the BIA did not violate due process in rejecting Shah’s CAT claim and
because its determination is supported by substantial evidence, we will dismiss Shah’s
petition to review the BIA’s denial of protection under the CAT.
IV. Conclusion
For the foregoing reasons, we dismiss Shah’s petition for review of the BIA’s final
order of removal.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge

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